Mahoney v. United States
77 U.S. 62 (1869)

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U.S. Supreme Court

Mahoney v. United States, 77 U.S. 10 Wall. 62 62 (1869)

Mahoney v. United States

77 U.S. (10 Wall.) 62

Syllabus

The provision of the Act of Congress of May 1, 1810, fixing a salary to the consul at Algiers and assigning to him certain duties, treating that place as belonging to a Mohammedan power, ceased to be operative when the country, of which it was the principal city, became a province of France. The construction of the Secretary of State to this effect, impliedly sanctioned by the Act of Congress of March 1, 1855, "to remodel the diplomatic and consular systems of the United States," 10 Stat. at Large 621, and expressly sanctioned by the Act of August 18, 1866, to regulate those systems, 11 id. 52.

An act of Congress "fixing the compensation of public ministers and of consuls residing on the Coast of Barbary

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and for other purposes," passed on the 1st of May, 1810, [Footnote 1] provides that the President shall not allow

"to any consul who shall be appointed to reside at Algiers a greater sum than at the rate of $4,000 per annum as a compensation for all his personal services and expenses."

Provision is made by the same act for salaries to consuls at Tangiers, Tripoli, and Tunis, other towns of the same coast.

At the time when this act was passed, Algiers was and had long been the capital, regency, or pachalic of the same name, one of the well known Barbary States, a Mohammedan power, and dependent on the Ottoman empire, from which empire Turkish pirates had issued in early days, establishing themselves as sovereign masters of the City of Algiers. In 1830, a French army landed on the African coast, and after some fighting, Algiers opened its gates, and the Dey gave up his city and government. The city then, A.D. 1831, became and still remains the capital of the French colonial province of Algeria; French tribunals, including at Algiers a tribunal of commerce, having largely displaced the native.

The act of 1810 above-mentioned specified the sum which might be allowed to consuls residing at Algiers, Tangiers, Tripoli, and Tunis -- all of them ports of what were known as the already mentioned Barbary States. It also provided that "no consul of the United States residing in the Barbary States should own in whole or in part a vessel or be concerned in trade," and some other provisions in the act showed that had reference to a consul at Algiers [Footnote 2] as a place under the control of one of these same states.

An act subsequent to the conquest of Algiers by the French -- the Act of March 1, 1855 -- making provision for consuls in the "Barbary States," fixed a compensation for consuls at the last three named places italicized as above, but made no provision for the appointment or payment of a consul at Algiers, and a still later act -- that of August 18, 1856, making similar provision, and specifically mentioning the

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last three, but not specifically mentioning Algiers -- enacted that consuls for places not thus specifically mentioned should be entitled, as compensation for their services, to such fees as they might collect.

With this act of 1810 on the statute book, but after the conquest of Algiers already mentioned, one Mahoney, in 1854, was appointed consul of the United States at the City of Algiers, in the north of Africa. He soon afterwards entered upon the discharge of his duties, and continued in office until November, 1859, when he resigned. During this period, he received no salary from the government, nor did he make any return to the government of fees received by him as consul, but he was paid the necessary expenses of his office, and was allowed by the Department of State to transact business as a merchant. Whilst in office, he preferred no claim for any salary or compensation for his services, nor did he afterwards advance any such claim until July, 1865. He then presented his claim for $4,000 a year as salary to the Treasury Department. That department referred the matter to the State Department, and Mr. Seward, then Secretary of State, informed him that his claim could not be allowed. Its payment was accordingly refused. He then brought suit in the Court of Claims to recover the amount.

That court, which found as facts the matters stated in this last paragraph, dismissed the bill, holding, among other things, as matter of law that from and after the recognition of Algeria by the United States as a province of France, the powers and duties of the consulate at Algiers were regulated and defined by the treaties of the United States with France, and that the consul became entitled to receive and hold his fees of office and to transact business, and was not entitled to receive the salary of $4,000 per annum, authorized by the act of 1810, fixing the compensation of consuls residing on the coast of Barbary.

From this dismissal Mahoney, the claimant, appealed.

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